Unequal treatment despite equal treatment? Compliance in terms of regulating additional remuneration for part-time work

What happened in the specific case?

The decision involved a request raised by the German Federal Labour Court (BAG) as to whether a provision in a collective agreement, which makes payment of additional remuneration for part-time employees and for comparable full-time employees uniformly contingent on the same number of monthly flying duty hours being exceeded, is compatible with applicable law.
The compatibility with the principle of non-discrimination of part-time employees under EU law was doubtful:

„In respect of employment conditions, part-time employees shall not be treated in a less favourable manner than comparable full-time employees solely because they work part-time unless different treatment is justified on objective grounds.“ (Clause 4.1 of the Framework Agreement on part-time work annexed to Council Directive 97/81/EC of 15 December 1997).

In the underlying dispute a pilot (the plaintiff) and his employer (the defendant) argued about the existence of a claim by the plaintiff to remuneration for additional flying duty hours (additional remuneration).

The plaintiff worked part-time for the defendant. A collective agreement applicable to the plaintiff provided for additional remuneration if the employees worked a certain number of flight hours per month and exceeded specified thresholds for the additional remuneration. The provision did not stipulate customised thresholds for part-time employees. Therefore, uniform, absolute thresholds applied to part-time and full-time employees. In this respect, part-time and full-time employees were treated equal.

The plaintiff was of the view that the standardised thresholds should be reduced by his individual “part-time factor”. Based on this, he would be entitled to the additional remuneration for several years. Without this reduction, he would be at a disadvantage compared to full-time employees. The defendant would disregard the principle of pro rata temporis.

Pro-rata-temporis (Latin for ‘in proportion to time’) is a principle which states that a part-time employee shall receive remuneration or another pro rata benefit, the extent of which shall at least correspond to the proportion of his or her work as compared with that of a comparable full-time employee.

The BAG had to assess whether the provision in question was discriminatory by treating part-time and full-time employees differently, which could not be justified and therefore violated applicable law. Due to the EU law element involved; the BAG referred the question to the ECJ for a preliminary ruling.

Decision of the ECJ

The ECJ’s focus was on the question of the method for determining unequal treatment. Depending on the point of view, supposed equal treatment could turn out to be unequal treatment. In the past, the ECJ has pursued various approaches to determine the existence of different treatment. In the present decision, the ECJ decided to consider the respective remuneration component on its own merits, against the principle of non-discrimination.

Applied to the facts of the case, the ECJ concluded that unequal treatment existed. Part-time employees were in fact subject to the same requirements as full-time employees. This led to the result that, to receive the additional remuneration, part-time employees were required to work more flying duty hours than full-time employees. This has a detrimental effect on the relationship between performance and consideration. Such a detriment required an objective ground of justification to be effective. The ECJ doubted whether such a ground exists, but remitted this assessment to the BAG. The result remains to be seen.

Classification of the decision and practical tips

Depending on the point of view, supposed equal treatment can turn out to be unequal treatment. In the present constellations, the ECJ's decision favours the individual consideration of each remuneration component. This is in line with the case law of the BAG. Therefore, the ECJ's decision provides more legal certainty.

The individual approach proves to be necessary in order to fulfil the principle of pro rata temporis. The provision in question led to a situation in which full-time employees receive the additional remuneration as soon as the first hour of overtime is exceeded, whereas this is not the case for part-time employees. This is a violation of the principle of non-discrimination, which is caused by the detrimental deviation from the principle of pro rata temporis. Instead, the trigger thresholds should be reduced in proportion to individual working hours.

Employers are therefore advised not to formulate standardised, absolute thresholds for part-time and full-time employees. The principle of pro rata temporis should always be observed unless there is an objective ground that justifies a different approach. In the context of additional remuneration and part-time work, it is therefore recommended that the threshold to be achieved is regularly reduced by an individual “part-time factor”. This takes into account both the considerations behind the introduction of part-time work and the performance of the additional work at an individual level.